Dwyer v. Maharajh, (2009) 292 Nfld. & P.E.I.R. 96 (NLTD)

• Judge: Butler, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: November 13, 2009
• Jurisdiction: Newfoundland and Labrador
• Citations: (2009), 292 Nfld. & P.E.I.R. 96 (NLTD)

Dwyer v. Maharajh (2009), 292 Nfld. & P.E.I.R. 96 (NLTD);

    902 A.P.R. 96

MLB headnote and full text

Temp. Cite: [2009] Nfld. & P.E.I.R. TBEd. NO.010

Ronda Dwyer (plaintiff) v. David Maharajh (first defendant)

(200104T0158; 2009 NLTD 179)

Indexed As: Dwyer v. Maharajh

Newfoundland and Labrador Supreme Court

Trial Division

Butler, J.

November 13, 2009.

Summary:

The plaintiff claimed against the defendant in both contract and tort alleging that he failed to use the reasonable care, skill and diligence of a urologist in the performance of her surgery on May 6, 1999. She asserted that she suffered personal injuries as a result and she sought special, general, aggravated and punitive damages, interest and costs.

The Newfoundland and Labrador Supreme Court, Trial Division, held that the defendant was negligent in his post-surgical care of the plaintiff and this delayed her full recovery by 6.5 months. The court awarded the plaintiff general damages of $40,000; special damages of $132, plus costs of medical records obtained; Department of Health account (to be agreed between the parties, failing which directions could be sought); and $12,356.89 for loss of income and benefits.

Damage Awards - Topic 61

Injury and death - Body injuries - Kidney - On May 6, 1999, the defendant urologist performed surgery on the plaintiff to remove kidney stones - Further surgeries were required because, in removing the stone, a 1.5 to 2 inch full thickness tear to the ureteric wall occurred - The Newfoundland and Labrador Supreme Court, Trial Division, held that the defendant was negligent in his post-surgical care of the plaintiff and this delayed her full recovery by 6.5 months - The court held that the plaintiff was not entitled to compensation for the complication arising from the initial surgery in May 1999 including the symptoms she suffered until October 1, 1999 and the procedures she endured in that period - Nor was she entitled to compensation for the re-implantation surgery after she was referred to Dr. Best as it would have been required in any event - She was entitled to compensation only for an additional 6.5 months of symptomatology, interference with activities and diminished enjoyment of life following which (with the exception of urinary tract infections annually up to 2005) a full recovery was achieved - The court awarded the plaintiff general damages of $40,000 - See paragraphs 141 to 156.

Damage Awards - Topic 492.1

Injury and death - General damage awards - Pretrial income loss - On May 6, 1999, the defendant urologist performed surgery on the plaintiff to remove kidney stones - Further surgeries were required because, in removing the stone, a 1.5 to 2 inch full thickness tear to the ureteric wall occurred - The Newfoundland and Labrador Supreme Court, Trial Division, held that the defendant was negligent in his post-surgical care of the plaintiff and this delayed her full recovery by 6.5 months - The court awarded the plaintiff $12,356.89 for loss of income and benefits - Unsatisfactory evidence was led respecting the plaintiff's loss of potential overtime (hours offered, rate of pay applicable and whether the plaintiff would have accepted any offers) and therefore the court was unable to make an award under this head of damage - The plaintiff was obliged to repay the federal government for any employment benefits received from her award for loss of income and benefits - See paragraphs 160 to 164.

Damages - Topic 1764

Deductions for payments or assistance by third parties - By statute or government - Unemployment insurance benefits - [See Damage Awards - Topic 492.1 ].

Medicine - Topic 3045

Relation with patient - Consent to treatment - What constitutes informed consent - The Newfoundland and Labrador Supreme Court, Trial Division, stated that "A patient's consent to surgery can only be said to be 'informed' if they have had all available options and the material risks and complications of each explained to them." - See paragraph 37.

Medicine - Topic 3045

Relation with patient - Consent to treatment - What constitutes informed consent - [See Medicine - Topic 3052 ].

Medicine - Topic 3052

Relation with patient - Consent to treatment - Standard of disclosure by doctor - The defendant urologist performed surgery on the plaintiff to remove kidney stones - Further surgeries were required - The Newfoundland and Labrador Supreme Court, Trial Division, held, inter alia, that the defendant obtained proper and informed consent before the original surgery - He explained the risks associated with the procedure (including perforation and haemorrhaging) to the plaintiff - He did not advise her of the risk that in removing the stone either the lithotripter, the jagged edges of the stone or the basket could cause a full thickness tear to the ureteric wall - Nor did he tell her that, if this occurred, she would endure multiple medical procedures, requiring her to function and attend to activities of daily living with stents inserted for nine months and ultimately requiring her to have re-implantation surgery - In the absence of expert opinion, the court held that the defendant's general description of the complications and risks was sufficient - As to the objective element of the test for informed consent, he alerted his patient to the possibility of a perforation (both expert witnesses testified that a tear or perforation was a recognized complication of this type of surgery) - Alerting a patient to a possible perforation was not materially different from advising her of the possibility of a tear - Further, a reasonably skilled urologist would not provide further details of a possible perforation unless the patient posed specific questions - If the patient did so, this would be a relevant consideration on the subjective side of the test - As to the subjective element, there was no suggestion that the plaintiff had any specific fears that would have either led her to seek further details of the defendant's general description of the risks or give her cause for concern greater than the ordinary patient facing such surgery - See paragraphs 37 to 49.

Medicine - Topic 4241.1

Liability of practitioners - Negligence or fault - Negligence distinguished from errors in judgment - On May 6, 1999, the defendant urologist performed surgery on the plaintiff to remove kidney stones - Further surgeries were required because, in removing the stone, a 1.5 to 2 inch full thickness tear to the ureteric wall occurred - The Newfoundland and Labrador Supreme Court, Trial Division, held that the plaintiff did not prove that the defendant's decision not to further fragment the stone and to attempt its removal using a wire basket as planned (until the basket became lodged) represented "an act of unskilfulness or carelessness" as opposed to an "honest and intelligent exercise of judgment" - See paragraphs 50 to 65 - Further, the defendant did not breach the appropriate standard of care in deciding to take a second look by reinserting a ureteroscope once the basket had been retrieved - See paragraphs 66 to 74.

Medicine - Topic 4241.1

Liability of practitioners - Negligence or fault - Negligence distinguished from errors in judgment - On May 6, 1999, the defendant urologist performed surgery on the plaintiff to remove kidney stones - Further surgeries were required because, in removing the stone, a 1.5 to 2 inch full thickness tear to the ureteric wall occurred - The defendant referred the patient to Dr. Best on January 31, 2000 - The Newfoundland and Labrador Supreme Court, Trial Division, held that the referral should have been made earlier and more conservative treatments discontinued (stents as opposed to open surgical repair) - The plaintiff's informal attempts at a referral to Dr. Best in October 1999 came to an abrupt halt when the defendant learned of her actions and had a conversation with Dr. Best, which did not accurately describe the patient's course of treatment and which foreclosed a valuable opportunity to obtain the surgery she requested - The defendant's actions/inactions reflected indifference as to his patient's unresolving medical problem, not merely an error in judgment - See paragraphs 117 to 139.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - [See both Medicine - Topic 4241.1 ].

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - On May 6, 1999, the defendant urologist performed surgery on the plaintiff to remove kidney stones - Further surgeries were required because, in removing the stone, a 1.5 to 2 inch full thickness tear to the ureteric wall occurred - The Newfoundland and Labrador Supreme Court, Trial Division, held that the standard of care expected of the defendant in the relevant period (1999 - 2000) was to provide effective/forthright communication that would allow the plaintiff to be a well-informed and active participant in decisions regarding her care - See paragraph 94.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - On May 6, 1999, the defendant urologist performed surgery on the plaintiff to remove kidney stones - Further surgeries were required because, in removing the stone, a 1.5 to 2 inch full thickness tear to the ureteric wall occurred - The Newfoundland and Labrador Supreme Court, Trial Division, found that the defendant's actions/inactions in his post-surgical care of the plaintiff were negligent - The defendant reported to the plaintiff that there was a small tear in her ureter - This was neither a fair nor accurate description of the significant injury that he knew that she had suffered - The defendant failed to meet the standard of a prudent urologist in his initial description of the injury and his initial assessment of the appropriate treatment - Given the physician/patient relationship and the faith she placed in him, the defendant's minimalization of the injury was a key factor in the plaintiff's acceptance of the appropriateness of the conservative treatment he initially provided following surgery - On each of their subsequent appointments the plaintiff relied upon the defendant to recommend an appropriate course of treatment - Further, between May 6, 1999 and January 31, 2000 (when he referred the plaintiff to Dr. Best), no evidence indicated that the defendant disclosed to the plaintiff that she had sustained a 1.5 to 2 inch full-thickness tear of the ureteric wall - Forthrightness required such detail because without it the plaintiff could not be considered a "well-informed and active" participant in her care - Her ongoing tolerance of the defendant's conservative measures (stents as opposed to open surgical repair) was based upon the assumption that her injury was less serious - Further, the defendant breached the standard of care of a reasonable, prudent urologist in the referral to Dr. Best - His telephone and written communications with Dr. Best were not accurate descriptions of either the initial injury, the extent of hydronephrosis or the treatment he provided - See paragraphs 95 to 116.

Medicine - Topic 4257

Liability of practitioners - Negligence or fault - Evidence and burden of proof - The defendant urologist performed surgery on the plaintiff to remove kidney stones - She asserted that she suffered personal injuries as a result - Further surgeries were required because, in removing the stone, a full thickness tear to the ureteric wall occurred - The Newfoundland and Labrador Supreme Court, Trial Division, stated that the plaintiff and defendant were the only witnesses who could provide first-hand evidence respecting their post-surgical discussions - The court stated that a factor assisting it in drawing conclusions on the communication issue was the availability and content of the hospital records - The defendant could have retained reliable notes of the advice that he provided during his appointments with the plaintiff - His failure to do so should not prejudice the plaintiff - The court held that where there were differences in their recollection and a lack of a reliable record, it should give rise to an inference adverse to the defendant's interests - See paragraphs 80 and 82.

Torts - Topic 35

Negligence - Standard of care - Particular persons and relationships - Medical doctors - [See both Medicine - Topic 4241.1 and second and third Medicine - Topic 4242 ].

Cases Noticed:

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361; 114 D.L.R.(3d) 1, refd to. [para. 38].

Arndt et al. v. Smith, [1997] 2 S.C.R. 539; 213 N.R. 243; 92 B.C.A.C. 185; 150 W.A.C. 185; 148 D.L.R.(4th) 48, refd to. [para. 39].

Crits v. Sylvester, [1956] O.R. 132; 1 D.L.R.(2d) 502 (C.A.), refd to. [para. 45].

Wilson v. Swanson, [1956] S.C.R. 804; 5 D.L.R.(2d) 113, refd to. [para. 54].

Lapointe v. Chevrette, [1992] 1 S.C.R. 351; 133 N.R. 116; 45 Q.A.C. 262; 90 D.L.R.(4th) 7, refd to. [para. 63].

Lapointe v. Hôpital Le Gardeur - see Lapointe v. Chevrette.

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241; 127 D.L.R.(4th) 577, refd to. [para. 65].

ter Neuzen v. Korn - see Neuzen v. Korn.

Vaters v. Daly (1991), 95 Nfld. & P.E.I.R. 181; 301 A.P.R. 181; 26 A.C.W.S.(3d) 882 (Nfld. T.D.), refd to. [para. 89].

Crick v. Mohan (1993), 142 A.R. 281; 41 A.C.W.S.(3d) 1148 (Q.B.), refd to. [para. 118].

Scott v. Mohan - see Crick v. Mohan.

Courtney v. Cleary (2009), 287 Nfld. & P.E.I.R. 311; 885 A.P.R. 311; 2009 NLTD 103, refd to. [para. 138].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94; 72 D.L.R.(4th) 289, appld. [para. 141].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243; 140 D.L.R.(4th) 235, appld. [para. 141].

Santos v. Traff et al. (1999), 251 A.R. 223; 90 A.C.W.S.(3d) 308; 1999 ABQB 630, dist. [para. 153].

Knight v. Sloan, [2003] O.J. No. 3453 (Sup. Ct.), dist. [para. 153].

Coulter v. Liberty Mutual Insurance Co., [2003] O.T.C. 439; 122 A.C.W.S.(3d) 1175 (Sup. Ct.), dist. [para. 154].

Rimmington v. Collingwood General & Marine Hospital (1995), 59 A.C.W.S.(3d) 1212 (Ont. Gen. Div.), consd. [para. 156].

Authors and Works Noticed:

Cameron Commission Report - see Newfoundland, Department of Government Services, Commission of Inquiry on Hormone Receptor Testing: Investigation and Findings.

Chang, R., and Marshall, F.F., Management of Ureteroscopic Injuries (1987), 137 J. of Urology 1132, p. 1135 [para. 68].

Newfoundland, Department of Government Services, Commission of Inquiry on Hormone Receptor Testing: Investigation and Findings (Cameron Commission Report) (2009), vol. 1, c. 10 to c. 12 [para. 92]; c. 19, pp. 453, 454 to 456 [para. 93]; p. 179, fn. 1 [para. 91].

Sneiderman, B., Irvine, J.C., and Osborne, P.H., Canadian Medical Law (3rd Ed. 2003), pp. 145 [para. 117]; 147 [para. 90].

Counsel:

Kimberly Burridge, for the plaintiff;

Liam O'Brien and Robin Cook, for the first defendant.

This action was heard at Corner Brook, Nfld. & Lab., by Butler, J., of the Newfoundland and Labrador Supreme Court, Trial Division, who delivered the following decision on November 13, 2009.